Wednesday, July 27, 2011

Much progress has been made in achieving the ambitious goals that Congress established more than 35 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants.

There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation’s remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.

For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue has been the role of the federal government in assisting states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, the House passed H.R. 1262 to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure and several related provisions of the act. A companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted.

Programs that regulate activities in wetlands also have been of interest, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that have narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate. In the 111th Congress, the Senate Environment and Public Works Committee approved a bill that sought to clarify but not expand the CWA’s geographic scope (the Clean Water Restoration Act, S. 787). A companion bill was introduced in the House (H.R. 5088). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted.

These issues are likely to be of interest in the 112th Congress, as well. In addition, a number of other CWA issues have drawn interest recently and been the subject of congressional oversight and legislation, with some legislators seeking to support implementation efforts, and others critical of recent regulatory initiatives. Among the topics of possible interest are environmental and economic impacts of Chesapeake Bay restoration efforts, federal promulgation of water quality standards in Florida, regulation of surface coal mining activities in Appalachia, and other CWA regulatory actions.

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In the two and one-half years since Barack Obama was sworn in as President, the Environmental Protection Agency (EPA) has proposed and promulgated numerous regulations implementing the pollution control statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress and outside of it, have accused the agency of reaching beyond the authority given it by Congress and ignoring or underestimating the costs and economic impacts of proposed and promulgated rules. Republican leaders have promised vigorous oversight of the agency in the 112th Congress, and the House has already voted to overturn specific regulations and to limit the agency’s authority. Particular attention is being paid to the Clean Air Act, under which EPA has moved forward with the first federal controls on emissions of greenhouse gases and addressed conventional pollutants from a number of industries.

Environmental groups disagree that the agency has overreached, and EPA itself maintains that its pace of regulation under the Clean Air Act is actually slower than the pace during the first years of the Clinton and George W. Bush Administrations. The agency states that critics’ focus on the cost of controls obscures the benefits of new regulations, which, it estimates, far exceed the costs; and it maintains that pollution control is an important source of economic activity, exports, and American jobs.

This report provides background information on recent EPA rulemaking to help address these issues. It examines 44 major or controversial regulatory actions taken by or under development at EPA since January 2009, providing details on the regulatory action itself, presenting an estimated timeline for completion of the rule (including identification of related court or statutory deadlines), and, in general, providing EPA’s estimates of costs and benefits, where available.

The report also discusses factors that affect the timeframe in which regulations take effect, including statutory and judicial deadlines, public comment periods, judicial review, and permitting procedures, the net results of which are that existing facilities are likely to have several years before being required to comply with most of the regulatory actions under discussion. Unable to account for such factors, which will vary from case to case, timelines that show dates for proposal and promulgation of EPA standards effectively underestimate the complexities of the regulatory process and overstate the near-term impact of many of the regulatory actions.

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The 112th Congress continues to debate whether and how the United States should address climate change. Most often, this debate includes concerns about the effects of U.S. greenhouse gas (GHG) emissions controls if China and other major countries were not to take comparable actions. China recently surpassed the United States to become the largest emitter of humanrelated GHG globally, and together, the two nations emit about 40% of the global total (with shares of 21% and 19% respectively).

China’s GHG emissions are growing rapidly and, even with policies adopted by China, are expected to rise until at least 2030. The emissions growth is driven by China’s rapid economic and industrial growth and its reliance on fossil fuels despite measures to raise the shares of nonfossil energy sources. China requires 50% more energy to produce one billion dollars of GDP (its “energy intensity”) compared with the United States. Over the past two decades, strong government directives and investments have dramatically reduced the energy and GHG intensities of China’s economy, though the rates of improvement leveled off in the 2000s, and even reversed in subsequent years. A renewed emphasis on improving energy and GHG intensity emerged in the 11th 5-Year Plan, from 2006-2010, and the government says the nation nearly achieved its aggressive goal to reduce by 20% the energy required to produce GDP. In the context of China’s 12th 5-Year Plan, from 2011-2015, leaders have set targets to further reduce energy intensity by 16% by 2015. Along with measures to reduce pollution and increase the shares of non-fossil fuels in the energy sector, China has set goals to improve its CO2 intensity by 40-45% by 2020, with an interim target in the 12th 5-Year Plan of 17% by 2015. Even if these targets are achieved, China’s GHG emissions are expected to rise in absolute terms. In addition, the frequency, transparency, and data quality of China’s reporting of its GHG emissions and mitigation actions (including underlying energy and other data) have been a challenging diplomatic issue between the United States and China and in the climate change negotiations. China has resisted reporting and reviews comparable to what other industrialized nations or what many developing countries accept. While technical bilateral cooperation on data has been productive and China has moved politically toward better information sharing, the continuing lack of transparency is apparent in uncertain emissions estimates and projections.

Chinese negotiators adhere to the principle of “common but differentiated” responsibilities, agreed in the United Nations Framework Convention on Climate Change (1992). They argue that emissions per person in China are low, that raising incomes must be their highest priority, and that industrialized countries bear primary responsibility for the historical buildup of GHGs in the atmosphere; therefore the industrialized countries should lead in mitigating emissions domestically. Industrialized countries also, they say, should assist developing countries with financial and technological support to mitigate emissions and adapt to coming change.

Debate on potential climate change legislation in the United States has been influenced by China’s surging GHG emissions, and uncertainty over whether, how, and when China might alter that trend. There is concern that strong U.S. domestic action taken without Chinese reciprocity would unfairly advantage China in global trade, and fail to slow significantly the growth of atmospheric concentrations of GHGs. The governments of both China and the United States have indicated some closure of their gap on future actions to address climate change by agreeing on national pledges to GHG targets and mitigation actions rather than binding international obligations. China is also engaged with many other countries in bilateral programs to build its governance and technological capacities to abate its GHG emissions.

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Monday, July 25, 2011

Passed in 1982, the Nuclear Waste Policy Act (NWPA) was an effort to establish an explicit statutory basis for the Department of Energy (DOE) to dispose of the nation’s most highly radioactive nuclear waste. The NWPA requires DOE to remove spent nuclear fuel from commercial nuclear power plants, in exchange for a fee, and transport it to a permanent geologic repository or an interim storage facility before permanent disposal. Defense-related high-level waste is to go into the same repository. In order to achieve this goal, and in an effort to mitigate the political difficulties of imposing a federal nuclear waste facility on a single community, Congress attempted to establish an objective, scientifically based multi-stage statutory process for selecting the eventual site of the nation’s new permanent geologic repository. Congress amended the NWPA’s site selection process in 1987, however, and designated Yucca Mountain, Nevada, as the sole candidate site for the repository by terminating site specific activities at all other candidate sites.

The Obama Administration, in conjunction with DOE, has taken three important steps directed toward terminating the Yucca Mountain project. First, the Administration’s FY2011 budget proposal eliminated all funding for the Yucca Mountain project. Second, the President and Secretary of Energy Steven Chu established a Blue Ribbon Commission to consider alternative solutions to the nation’s nuclear waste challenge. Third, and most controversial, DOE has attempted to terminate the Nuclear Regulatory Commission’s (NRC’s) Yucca Mountain licensing proceeding by seeking to withdraw the license application for the Yucca Mountain facility.

DOE’s withdrawal motion triggered strong opposition from a number of concerned parties. The states of Washington and South Carolina—each awaiting cleanup and removal of defense-related nuclear waste at the Hanford and Savannah River Sites, respectively—have played significant roles in the legal challenge to the license withdrawal. Claims challenging the Secretary’s authority to withdraw the Yucca Mountain license application were filed with both the NRC and the U.S. Court of Appeals for the District of Columbia (D.C. Circuit).

Controversy over the Yucca Mountain license application intensified in October 2010, when NRC Chairman Gregory Jaczko directed NRC staff to use funds appropriated under the FY2011 continuing resolution to close down the agency’s review of the Yucca Mountain license application.

While the result of the ongoing dispute over the legality of the attempted termination of the Yucca Mountain program remains uncertain, the change of control in the House of Representatives could have a significant impact on the fate of the Yucca Mountain facility. A number of leading House Republicans have voiced strong opposition to shutting down the Yucca Mountain facility. Consequently, the Yucca Mountain dispute may not only be played out before the NRC and the D.C. Circuit, but also in the House of Representatives, in the form of appropriations disputes and oversight hearings.

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Enacted April 15, 2011, the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112-10, H.R. 1473), provided funding for the remainder of FY2011 for those agencies typically funded under 12 regular appropriations bills. Including applicable rescissions, Title VII of Division B under P.L. 112-10 provided $8.68 billion for the Environmental Protection Agency (EPA ) for FY2011. The final EPA FY2011 appropriations were $1.61 billion (16%) less than the FY2010 appropriation of $10.29 billion, and $1.34 billion (13%) less than the $10.02 billion included in the President’s FY2011 budget request.

The overall decrease for EPA for FY2011, including rescissions, compared to the FY2010 enacted appropriations and FY2011 President’s request was reflected in reductions across the eight EPA regular appropriations accounts. Most of the overall FY2011 decrease resulted from a reduction in EPA’s State and Tribal Assistance Grants (STAG) account for grants to aid states to capitalize their Clean Water and Drinking Water State Revolving Funds (SRFs). The FY2011 combined total for the Clean Water and the Drinking Water SRFs was $2.49 billion, compared to $3.49 billion for FY2010 and the President’s FY2011 budget request of $3.29 billion.

None of the 12 regular appropriations bills for FY2011, including the Interior, Environment, and Related Agencies bill that funds EPA, were enacted before the start of the fiscal year on October 1, 2010. Initially, a series of temporary continuing resolutions (CRs) was enacted that sequentially extended funding from October 1, 2010, through April 15, 2011 (the last of the FY2011 interim CRs was P.L. 112-8, enacted April 9, 2011). Also during the 112th Congress, Title VII of Division B in H.R. 1, a full-year continuing resolution passed by the House on February 19, 2011, included specified funding levels for certain EPA accounts below the FY2011 requested and FY2010 enacted levels. House-passed H.R. 1 contained more than 20 provisions that would have restricted and prohibited the use of appropriated funds to implement various regulatory activities under EPA’s jurisdiction. On March 9, 2011, the Senate did not pass the House version of H.R. 1 and did not agree to a subsequent Senate substitute amendment (S.Amdt. 149) containing different funding levels and omitting the EPA provisions included in the House-passed H.R. 1.

In addition to the Clean Water and the Drinking Water SRFs, other prominent issues that received attention within the context of the EPA FY2011 appropriations debate included the level of funding for greenhouse gas emission regulations, climate change research and related activities, cleanup of hazardous waste sites under the Superfund program, cleanup of less hazardous sites referred to as brownfields, and grants to assist states in implementing certain air pollution control requirements. Funding for the Great Lakes Restoration Initiative established in the FY2010 appropriations, and funding for the protection and restoration of the Chesapeake Bay and other geographic-specific water programs, also received attention.

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